115,430 research outputs found

    The Functional Method of Comparative Law

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    The functional method has become both the mantra and the bete noire of contemporary comparative law. The debate over the functional method is the focal point of almost all discussions about the field of comparative law as a whole, about centers and peripheries of scholarly projects and interests, about mainstream and avant-garde, about ethnocentrism and orientalism, about convergence and pluralism, about technocratic instrumentalism and cultural awareness, etc. Not surprisingly, this functional method is a chimera, both as theory and as practice of comparative law. In fact, the functional method is a trifold misnomer: There is not one ( the ) functional method but many, not all methods so called are functional at all, and some projects claiming adherence to it do not even follow any recognizable method. This paper first places the functional method in a historical and interdisciplinary context, in order to see its connections with, and peculiarities opposed to, the debates about functionalism in other disciplines. Second, it tries to use the functionalist method on the method itself, in order to determine how functional it is. This makes it necessary to place functionalism within a larger framework -- not within the development of comparative law, but instead within the rise and fall of functionalism in other disciplines, especially the social sciences. Thirdly, the comparison with functionalism in other disciplines enables us to see what is special about functionalism in comparative law, and why what would in other disciplines rightly be regarded as methodological shortcomings may in fact be fruitful for comparative law. This analysis leads to surprising results. Generally, one assumes that the strength of the functional method lies in its emphasis on similarities, its aspirations towards evaluation and unification of law. Actually, the functional method emphasizes difference, it does not give us criteria for evaluation, and it provides powerful arguments against unification. Further, one generally assumes that the functional method does not account sufficiently for culture and is reductionist. However, the functional method not only requires us to look at culture, but also enables us, better than other methods, to formulate general laws without having to abstract from the specificities. The problem is that the functional method, as generally described, combines a number of different concepts of function: an evolutionary concept, a structural concept, a concept focusing on equivalence. The relation between these different concepts within the method is unclear, its aspirations therefore unrealistic. If we reconstruct the method plainly on the basis of functional equivalence as the most robust of the three concepts of function and emphasize an interpretative as opposed to a scientific approach, we realize that the functional method can make less claims, but at the same time is less open to some of the critique voiced against it. In short, the functional method is strong as a tool for understanding, comparing, and critiquing different laws, but a weak tool for evaluating and unifying laws. It helps us in tolerating and critiqueing foreign law, it helps us less in critiquing our own

    Shared Mental Models, Catch-up Development and Economic Policy-Making: The Case of Germany after World War II and its Significance for Contemporary Russia

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    The paper deals with the connection between politically induced catch-up development, cultural and intellectual traditions and economic order in Germany and Russia. It is argued that in the history of both countries we encounter significant structural parallels, including the totalitarian experience. After World War II the German political Ă©lite managed to implement capitalism in a country, the population of which was still hostile towards capitalism. The key to success was that the German political rulers, in contrast to the Russian ‘young reformers’ of the early 1990s, from the beginning on took into account the shared mental models prevailing in Germany. Therefore some lessons may be drawn from the German historical experience in regard to today’s Russia.

    The Ethical Values That Civil Law Must Respect in the Field of Euthanasia

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    A Lifespan and Beyond – Essay in Honor of Wolfgang Mitter

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    The sense of an ending? Nature in the Anthropocene

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    Among the normative questions posed by the supposed advent of the Anthropocene is the following: Does the Anthropocene spell the end of nature? The philosophical answer to that question may determine the political answer to the phenomenon that is described by this geological-cum-historical notion. In this paper, I will argue that, although the signs are mixed, the Anthropocene does indeed confirm that nature has ended in a particular yet important way - but that such ending does not preclude further reflection about the human relation with the environment. In fact, such recognition makes possible another understanding of the task that lie ahead: a reflective re-organization of socionatural relations and a reconceptualization of sustainability.Universidad de MĂĄlaga. Campus de Excelencia Internacional AndalucĂ­a Tec

    Resource dependent branching processes and the envelope of societies

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    Since its early beginnings, mankind has put to test many different society forms, and this fact raises a complex of interesting questions. The objective of this paper is to present a general population model which takes essential features of any society into account and which gives interesting answers on the basis of only two natural hypotheses. One is that societies want to survive, the second, that individuals in a society would, in general, like to increase their standard of living. We start by presenting a mathematical model, which may be seen as a particular type of a controlled branching process. All conditions of the model are justified and interpreted. After several preliminary results about societies in general we can show that two society forms should attract particular attention, both from a qualitative and a quantitative point of view. These are the so-called weakest-first society and the strongest-first society. In particular we prove then that these two societies stand out since they form an envelope of all possible societies in a sense we will make precise. This result (the envelopment theorem) is seen as significant because it is paralleled with precise survival criteria for the enveloping societies. Moreover, given that one of the "limiting" societies can be seen as an extreme form of communism, and the other one as being close to an extreme version of capitalism, we conclude that, remarkably, humanity is close to having already tested the limits.Comment: Published in at http://dx.doi.org/10.1214/13-AAP998 the Annals of Applied Probability (http://www.imstat.org/aap/) by the Institute of Mathematical Statistics (http://www.imstat.org

    From workers education to societal competencies: approaches to a critical, emancipatory education for democracy

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    This article presents two conceptions concerning critical political education for workers, developed in Germany in the 1960s and the 1990s respectively. First, the conception of “Sociological Imagination and Exemplary Learning” published in 1968 by the German philosopher and sociologist Oskar Negt (1975). Further the elaboration of this conception, which since the 1980s is known as “Societal Competencies“ (Negt, 1986). These competencies concern fundamental knowledge, which enables people to make political judgments, and act politically in democratic societies in an enlightened and reflected way. This conception deliberately distinguishes itself from the economic, instrumentalist notions of key qualifications and key competencies, which at least since the 1970s have been discussed with the aim of maintaining individual employability and competitiveness. ‘Societal competencies’ aim for individual and collective emancipation, the development of the capability to make judgments, and autonomy in the sense of the enlightened political agency and participation in democratization processes. (DIPF/Orig.

    From workers education to societal competencies: approaches to a critical, emancipatory education for democracy

    Full text link
    This article presents two conceptions concerning critical political education for workers, developed in Germany in the 1960s and the 1990s respectively. First, the conception of “Sociological Imagination and Exemplary Learning” published in 1968 by the German philosopher and sociologist Oskar Negt (1975). Further the elaboration of this conception, which since the 1980s is known as “Societal Competencies“ (Negt, 1986). These competencies concern fundamental knowledge, which enables people to make political judgments, and act politically in democratic societies in an enlightened and reflected way. This conception deliberately distinguishes itself from the economic, instrumentalist notions of key qualifications and key competencies, which at least since the 1970s have been discussed with the aim of maintaining individual employability and competitiveness. ‘Societal competencies’ aim for individual and collective emancipation, the development of the capability to make judgments, and autonomy in the sense of the enlightened political agency and participation in democratization processes. (DIPF/Orig.
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